The Judicial Conduct Tribunal on Monday began hearing two misconduct complaints against Western Cape high court judge Mushtak Parker. (Judges Matter)
The Judicial Conduct Tribunal on Monday began hearing two misconduct complaints against Western Cape high court judge Mushtak Parker, one of lying under oath and one of lying by omission in his interview for judicial appointment.
The first complaint of dishonesty was brought by 10 colleagues at the Cape bar. It concerns an affidavit filed by Parker in which he alleged that he was physically assaulted by the former head of the division, John Hlophe.
Parker retracted that version a year later.
His colleagues submit that his versions of what transpired in a heated exchange with Hlophe in his chambers in early 2019 are mutually destructive.
In 2020, the judicial conduct committee found that the facts pointed, prima facie, to gross misconduct.
“On these facts, if the first complaint is established, the position will be that the respondent has no explanation for giving these contradictory versions, one of which has to be untrue,” concluded the then chief justice, Raymond Zondo, who chaired the committee.
One of the first witnesses called by the tribunal was the Western Cape high court judge, Derek Wille, who testified that a visibly distraught Parker came to his chambers in February 2019 and told him what had transpired with the then judge president of the division.
Parker then dictated his initial affidavit to Wille, who advised that he seek psychological counselling. He also showed Wille a key he said broke when Hlophe shoved him against a cupboard in his chambers.
The alleged assault would become central to the damaging feud between Hlophe and the deputy judge president of the division, Patricia Goliath.
Goliath in January 2020 filed a sensational complaint against Hlophe. She accused him of egregious misconduct, ranging from pressing her to allocate a case to two judges he perceived to be sympathetic to then president Jacob Zuma, to domestic abuse to assaulting an unnamed junior colleague.
Hlophe denied that claim in an affidavit to the conduct committee, in which he said he had shown this section of his response to “the judge concerned” who agreed.
A number of judges in the division on Monday told the tribunal, chaired by retired Gauteng judge president Bernard Ngoepe, that Parker had relayed his altercation with Hlophe to them on several occasions and in some detail.
Judge Elizabeth Steyn said she approached Parker after she heard rumours that he was the junior judge to whom Goliath had alluded in her complaint.
“I could see that he suffered emotionally,” she said, adding that she then asked him if there was truth to what she had heard whispered at the court.
“I asked him: ‘Is it really true, were you actually really assaulted or did you mistake that there was an assault?’”
Steyn testified that Parker told her that Hlophe had attacked him after accusing him of “wanting to sleep with his wife”, Judge Gayaat Salie-Hlophe, and that he was deeply traumatised by what had transpired.
She said she found out some time later that he had corroborated Hlophe’s version in the affidavit the judge president filed in reply to Goliath’s complaint, and cryptically raised this in conversation with Parker.
He replied that there were colleagues who had encouraged him to lay a formal complaint against Hlophe, while others tried to dissuade him from doing so.
“He said some people had their own agendas as to why they wanted him to bring charges,” Steyn said, before pointing out that in their exchanges on the matter Parker never retracted his allegation that he had been assaulted.
“He never said to me that no assault took place.”
Steyn is one of the group of judges who filed formal complaints against Parker on 26 March 2020.
They are represented by advocate Geoff Budlender, who told Ngoepe on Monday that he did not propose to call all as witnesses because their testimony aligned so closely.
The second complaint came from the Western Cape advocates’ body, the Cape Bar Council.
It submitted that when Parker applied to be a judge, he had given dishonest answers to the Judicial Service Commission in a questionnaire aspirant judges are asked to complete before their interview.
Parker did not disclose that the law firm where he was a partner before ascending to bench had a R8 million shortfall in its trust account because of misappropriation of trust monies. Both the abuse of trust monies as well as failure to disclose such amounts to a breach of ethical rules.
One of the questions in the Judicial Service Commission (JSC) questionnaire was whether there were any circumstances, financial or otherwise, that may cause embarrassment if he were to become a judge. Parker replied: “No.”
The Judicial Conduct Committee said that if the complaint was sustained, this would potentially be an impeachable offence.
“The respondent’s failure to disclose in his nomination questionnaire and in the interview before the JSC that the trust account of his law firm had had a deficit for a long time while he was the managing director is extremely serious,” said Zondo.
The tribunal is scheduled to hear evidence until Wednesday.
Hlophe and former judge Nkola Motata last year became the first judges in post-apartheid South Africa to be removed from the bench for gross misconduct.